Transit Bus Stops: Ownership, Liability, and Access (2008)

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8 notice of changed conditions that rendered the design dangerous, but failed to remedy the danger.61 Likewise in New York, where the city fails to exercise due care in approving a defective design for a bus shelter, and then fails to take reasonable steps to alleviate the danger once it becomes aware of the dangerous condition, qualified immunity will be overcome.62 The District of Columbia, however, has held that the original decision to locate a bus stop is subject to perpetual design im- munity.63 2. Procedural Issues Even where the transit agency is subject to liability, claims may be defeated on procedural grounds, such as failing to file a claim within the statutory timeframe. For example, claims against the New York City Transit agency for personal injury, wrongful death, or damage to real or personal property “are subject to the require- ments of General Municipal Law § 50-i, which requires that any action be commenced within 1 year and 90 days of the event upon which the claim is based.”64 Such limitations are operative regardless of whether the pub- lic entity was acting in a governmental or proprietary capacity.65 E. Summary of Important Principles Liability may be: • Precluded under state sovereign immunity law (case law or statute). • Entire or partial. • Shielded for particular action complained of under discretionary or governmental exceptions. • Precluded by public duty rule, particularly in relation to security issues. • Found only where transit agency’s action or inaction proximately causes injury. Procedural requirements may limit, or even preclude altogether, recovery for damages. II. LEGAL LIABILITY FOR PERSONAL INJURY/PROPERTY DAMAGE RELATED TO BUS STOPS/BUS SHELTERS A. In General Liability for bus stop-related incidents can be signifi- cant. Even a small share of liability can translate into considerable financial burden: In Bonanno, supra, li- ability for 1 percent of the damages amounted to $1.6 61 Baldwin, 6 Cal. 3d at 434. 62 Flynn v. Farias, 528 N.Y.S.2d 486 (1988). 63 McKethean v. Wash. Metro. Area Transit Agency, 588 A.2d 708, 711 (D.C. App. 1991). 64 Petrucci v. City of N.Y., 167 A.D. 2d 29, 569 N.Y.S.2d 624 (N.Y. App. 1st Dep’t 1991). 65 McGuire v. City of N.Y., 153 N.Y.S.2d 368 (1956). million.66 In the wake of Bonanno, some local govern- ments may be reluctant to install shelters because of the potential liability.67 Establishing liability for injury or property damage requires a determination of which entity has a duty of care to the injured party, the breach of which duty was the proximate cause of the injury. That determination will turn in part on which entity has ownership or con- trol over the bus stop. The local jurisdiction often owns the areas where the bus stops are located. Thus ownership/responsibility for the bus stops themselves generally lies with the local jurisdiction, but in some instances—particularly in the case of bus shelters, which may be controlled by another entity—the responsibility may lie with the transit agency or a private entity. The varying ownership/control will affect the duty of care owed and thus liability. For example, where a transit agency does not have ownership or maintenance responsibility for a bus stop, and did not, through its actions or those of its bus driver, create a dangerous condition causing injury, the injured party does not have a cause of action, as a matter of law, against the transit agency.68 Where the transit agency does have control over the area where the injury took place, but has not created the dangerous condition, in order to show breach of duty the plaintiff must establish actual or constructive notice and a reasonable opportunity to remedy the condition.69 Note that enabling legislation, discussed infra, may set liability, either directly or by determining ownership and/or responsibility for main- tenance and operation of bus stops/bus shelters. This subsection discusses the general parameters of the duties of care that may be owed related to bus stops; which entities may owe a duty of care; how the passen- ger status may affect the duty owed; persons to whom a duty of care may be owed; the contexts in which a duty of care may arise; and the principal type of injury that may occur. Placement, design, and maintenance of bus stops may all pose different issues about duty of care, in terms of which entity owes the duty, the extent of the duty, and to whom it is owed. The subsequent subsec- tions of Section II discuss in more detail these issues concerning duty of care. While the local jurisdiction is often responsible for the condition of the bus stop, the 66 Paul Jewel, Bus Stops: It´s All About the “Curb Appeal,” www.nelsonnygaard.com/articles/article_busstops.htm. 67 Minutes of a Regular Meeting of the City Council of the City of Coronado, 1825 Strand Way, Coronado, CA 92118, Tuesday, April 15, 2003 (city attorney recommends against city-sponsored shelter because of potential liability), http://service.govdelivery.com/service/docs/CACORON/CACOR ON_1/CACORON_1_20030415_en.htm. 68 See Norris v. Westside Transit Line and/or American Transit Corp., 841 So. 2d 920 (La. App. Cir. 5 2003). 69 Lewis v. Metro. Transp. Auth., 99 A.D. 2d 246, 472 N.Y.S.2d 368 (N.Y. App. 1st Dep’t 1984) (plaintiff injured after allegedly slipping on oily substance on train platform; no cause of action because no showing of actual or constructive notice on part of defendant of allegedly dangerous condition).

9 primary focus of the analysis of this section is on poten- tial liability to the transit agency. In all instances, liability may vary based on state statutes and case law. Thus it is expected that transit agencies will use the cases cited as a basis for their own research in their specific jurisdictions. 1. Duties Owed Duties that may be owed related to bus stops include the common carrier’s duty of care to passengers, a mu- nicipality’s duty to maintain its streets and sidewalks, and for bus shelter franchisees, a property owner’s duty of reasonable care to business invitees. Contractors’ duties will generally be governed by standard negli- gence principles, not discussed here. Ownership of bus stops varies by jurisdiction.70 Usually the local, county, or state government is responsible for the design, con- struction, and maintenance of streets and sidewalks.71 However, in some circumstances, based on agreement, statute, or specific actions of the transit agency, the transit agency may be responsible for the conditions of the sidewalk or other area next to the bus stop. And in some jurisdictions, adjacent private property owners are responsible for sidewalk repairs.72 Assuming that the entity has the requisite ownership or control over the bus stop to owe a duty of care, the standards of care are as follows: Transit agency.— Generally, the transit agency has the utmost standard of care to meet when it is acting in 70 Examples of municipalities that own or are otherwise re- sponsible for bus stops/shelters: • Alameda, California, www.alamedatransit.org/projects/shelters/index.html. • Lincoln, Nebraska, www.lincoln.ne.gov/city/finance/purch/pdf/con05219.pdf. • Mesa, Arizona, www.cityofmesa.org/transportation/street_maintenance.aspx. • Temple City, California, www.ci.temple-city.ca.us/parksrec.asp. • West Covina, California, www.westcov.org/council/budget2006/page2a.html. Examples of transit agencies that own or are otherwise re- sponsible for bus stops/shelters: • AC Transit, www.actransit.org/aboutac/bod/memos/e279fc.pdf. • Regional Transportation Commission of Southern Ne- vada,www.rtcsouthernnevada.com/otm/06April/busshelter.htm. • St. Cloud Metropolitan Transit Commission (Metro Bus), www.stcloudmtc.com/minutes/.pdf. • VIA Metropolitan Transit (Bexar County/San Antonio), www.neighborhoodlink.com/demo/via/index.htm. • WMATA, www.ci.alexandria.va.us/city/mgmt_budget/fy05budgetmemos/ memo75.pdf. 71 LANDAU ET AL., supra note 28, § 8.03[1]. 72 For example, in St. Louis, Missouri, property owners are responsible for sidewalk repairs. Jeremy Kohler, Path of Resis- tance, Dec. 2005, www.disabilityrights.org/1205.htm. the capacity of common carrier.73 The theory justifying this duty is that passengers rely on the carrier’s profes- sional skill and judgment.74 California, for example, imposes a duty by statute of utmost care and diligence on common carriers.75 Wisconsin imposes a duty of the highest degree of care for passengers’ safety: [A] common carrier must exercise the highest degree of care for their safety. The care required is the highest that can be reasonably exercised by persons of vigilance and foresight when acting under the same or similar circum- stances, taking into consideration the type of transporta- tion used and the practical operation of its business as a common carrier.76 Although the Wisconsin court later described the de- gree of care as ordinary, it noted that the ordinary care required of common carriers “requires a more height- ened degree of care than the ordinary care that is re- quired of others.”77 Connecticut has expressed the common carrier duty as requiring the common carrier “to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances.”78 Where, however, the danger is one that the carrier is neither aware of nor had reason to be aware of, there is no breach of the duty.79 Maryland has held that a common carrier has a duty to exercise the “highest degree of care that is consistent with its mode of transport to ensure the safety of its passengers.”80 Rhode Island has held that “a common carrier owes to a passenger a duty to exercise the highest degree of care that is consistent with the orderly conduct of its business.”81 Some states impose a lesser standard: reasonable care under the circumstances.82 Regardless of the standard of care, it is generally held that common carriers are not insurers of their passen- 73 18 McQuillin, supra note 23, § 53.108, n.2; 2A SPEISER ET AL., supra note 21, § 9:19, Duty to prevent criminal acts of third persons; liability to victim harmed by criminal acts of third persons, at 471. 74 White v. Metro. Gov’t of Nashville and Davidson County, 860 S.W.2d 49, 52 (Tenn. App. 1993). 75 Shannon v. Central-Gaither Union Sch. Dist., 133 Cal. App. 124, 23 P.2d 769 (Cal. App. 1933), citing CAL. CIVIL CODE § 2100. 76 Hunt v. Clarendon Nat’l Serv., 278 Wis. 2d 439, 691 N.W.2d 904 (2004). 77 Id. 78 Josephson v. Meyers, 180 Conn. 302, 429 A.2d 877, 879 (Conn. 1980). 79 See Parlato v. Conn. Transit, 181 Conn. 66, 434 A.2d 322 (Conn. 1980). 80 Wash. Metro. Area Transit Agency v. Reading, 109 Md. App. 89, 674 A.2d 44 (1996). 81 Kelly v. R.I. Pub. Transit Agency, 740 A.2d 1243 (R.I. 1999). 82 2A SPEISER ET AL., supra note 21, § 9:30, n.91.

10 gers’ safety.83 Assuming the transit agency has not cre- ated a dangerous condition, in order to show breach of duty the plaintiff must establish that the transit agency had actual or constructive notice of the condition and a reasonable opportunity to remedy the condition.84 Municipality.—The city’s decision of where to locate a bus stop may be immune from challenge as a govern- mental function.85 Nonetheless, a public entity may be liable for dangers created by public property; such dan- gers may be due to adjoining property when the users of the public property are necessarily exposed to the risks posed by the adjoining property.86 If the municipality is not immune, the duty of care may include a duty to warn of dangerous conditions, such as oncoming traffic.87 The duty to warn of unsafe conditions may vary depending on the status of the party being warned. For example, Texas distinguishes between the duty of ordinary care owed a licensee to either make conditions reasonably safe or warn of a dangerous condition of which the governmental entity is aware and the licensee is not, and the duty owed an invitee to warn of a dangerous condition of which the governmental entity knows or would have known in the exercise of ordinary care, and to reduce or eliminate any unreasonable risk of harm posed by the dangerous condition.88 Franchisees.—Companies that design, install, oper- ate, and maintain bus shelters may owe a duty to con- duct such operations with reasonable care.89 2. Duty to Whom For the transit agency, determining the duty owed generally depends on the injured party’s standing: whether the injured party is a passenger and whether he or she is boarding, alighting, waiting, or passing by. Jurisdictions may differ on the criteria for determining when a person qualifies as a passenger owed the high- est duty of care. In addition, the determination is fact dependent. For example, for the most part the transit agency will not owe a duty to a person who is merely passing by the bus stop or loitering at a bus shelter. However, where the transit agency has control over the bus stop or shelter, or sufficient responsibility for the area, the agency could owe a duty to such parties. 83 18 McQuillin, supra note 23, § 53.108, n.7. 84 Lewis v. Metro. Transit Auth., 99 A.D. 2d 246, 472 N.Y.S.2d 368 (1984). 85 See LANDAU ET AL., supra note 28, vol. 2, § 12.04[2], n.39. 86 Bassett v. Lakeside Inn, 140 Cal. App. 4th 836, 44 Cal. Rptr. 3d 827 (2006). 87 Josephson v. Meyers, 180 Conn. 302, 429 A.2d 879–80 (1980). 88 Dallas Area Rapid Transit v. Thomas, 168 S.W.3d 322 (Tex. App. 2005). 89 See, e.g., Cabrera v. Eller Media Co., June 24, 2005: Nata- lie White, $65 Million for Sixth-Grader Electrocuted At Bus Stop, Jury Rejects Lightning Theory, www.lawyersweeklyusa.com/usa/8topten2005.cfm. Clearly it is important to understand the duty of care owed passengers. However, for the purposes of this re- port, the focus is on incidents related to bus stops that involve persons who are boarding, alighting, or waiting to do one or the other, as opposed to passengers already on board a bus. In the case of a municipality owing a duty to those us- ing its streets and sidewalks, the distinctions between passengers, pedestrians, and prospective passengers matter less, if at all. A) Passengers.—Generally a common carrier owes the highest duty to passengers: Given the rationale for the high duty of care to passengers, a lesser duty may be owed where the passenger-carrier relationship has not yet formed, has been interrupted, or has terminated, such as at transit stations or on platforms,90 or in cases of pedestrians or prospective passengers.91 Jurisdictions may differ as to where to draw the line on formation of the passenger-carrier relationship for purposes of liability. The District of Columbia has held that a common carrier owes a duty of reasonable care to its passengers, but that until a person “has placed him- self in some substantial sense in the custody or under the control of the carrier, he is not a passenger and no special duty of care is owed him. An intent to become a passenger is not enough to confer that status or to charge the carrier with the duty to exercise that degree of care owed by a carrier in the transportation of a pas- senger.”92 Rather the District requires the common car- rier’s duty to begin “when the intending passenger makes his first contact with the bus in the act of enter- ing it.”93 A person boarding or alighting from the bus will gen- erally be considered a passenger for the purpose of de- termining the duty of care owed.94 Generally the person will no longer be considered a passenger once the per- son safely reaches the sidewalk.95 Jurisdictions differ over the effect of a person’s intent to transfer. A person who alights from a bus with the intent to transfer to another conveyance may no longer be considered a pas- senger once the person safely reaches the sidewalk and so may no longer be owed the high standard of care owed a passenger.96 It is also possible that a person who 90 Lewis, 99 A.D. 2d 246. 91 18 McQuillin, supra note 23, § 53.108, n.n. 11–12. 92 McKethean v. Wash. Metro. Transit Auth. (WMATA), 588 A.2d 708 (D.C. App. 1988). 93 Id., citing Standardized Civil Jury Instructions for the District of Columbia, no. 8.2. 94 See R. W. Gascoyne, Annotation, Duty and Liability of Carrier by Motorbus to Persons Boarding Bus, 93 A.L.R. 2d 237 (2007). 95 See Sigmond v. Liberty Lines Transit, 689 N.Y.S.2d 239 (N.Y. App. Div. 2d Dep’t 1999). 96 See Martin v. Metro. Atlanta Rapid Transit Agency, 225 F. Supp. 1362 (N.D. Ga. 2002), p. 9 of Dec. 24, 2002, order granting preliminary injunction (unpublished order, Civil Ac- tion File No. 1:01-CV-3255-TWT), mandating as part of settle- ment agreement that passengers requiring use of wheelchair lift or ramp wait at designated bus stop, and further requiring

11 alights from a bus with the intent to transfer to another conveyance may still be considered a passenger, but owed a lesser duty of care.97 The duty of care may increase or decrease due to the special status or condition of the passenger. For exam- ple, a higher duty of care is owed to children than to adults.98 Where a transit agency provides transporta- tion to schoolchildren in more than an incidental man- ner, transit agency buses may become subject to a higher duty of care required for school bus transporta- tion.99 Some states have held that a greater duty is owed to an intoxicated passenger, where the carrier knows or should have known of the passenger’s condition.100 A number of jurisdictions have required a greater duty toward disabled individuals if the disability is made known to the carrier or is readily apparent.101 On an accessible bus route, the duty to provide a clear path to disembark includes the duty to provide an unobstructed path to and from the bus stop that is wheelchair acces- sible.102 B) Passengers Boarding/Alighting from Bus.103—A number of jurisdictions extend the “heightened duty” that if the passenger cannot board at that stop, the driver board the passenger at the nearest feasible point. 2A SPEISER ET AL., supra note 21, § 9:30, n.8. 97 McKethean, 588 A.2d 708 (1988). 98 18 McQuillin, supra note 23, § 53.108, n.6. 99 E.g. Metro. Atlanta Rapid Transit Agency v. Tuck, 163 Ga. App. 132, 292 S.E.2d 878, 881 (Ga. App. 1982). See also Bateman, supra note 7. 100 Wash. Metro. Transit Auth. v. Reading, 109 Md. App. 89, 111, 674 A.2d 44, n.5 (Md. App. 1996), citing Veenstra v. United Rys. and Elec. Co., 129 A. 678 (1925); O'Leary v. Am. Airlines, 100 A.D. 2d 959, 475 N.Y.S.2d 285 (N.Y. App. 2d Dep’t 1984); Leval v. Dugoni, 444 So. 2d 778, 780 (La. App. 1984). 101 Wash. Metro. Transit Auth. (WMATA) v. Reading, 109 Md. App. 89, 111, 674 A.2d 44, 54 (Md. App. 1996), citing Montgomery v. Midkiff and Transit Agency of River City, 770 S.W.2d 689, 690 (Ky. Ct. App. 1989); Paolone v. Am. Airlines, 706 F. Supp. 11, 12 (S.D.N.Y. 1989); Heger v. Trustees of Ind. Univ., 526 N.E.2d 1041, 1043 n.4 (Ind. Ct. App. 1988); Crear v. Nat’l Fire & Marine Ins. Co., 469 So. 2d 329, 334–35 (La. App. 1985); Cary v. New Orleans Pub. Serv., 250 So. 2d 92 (La. App.), cert. denied, 259 La. 808, 253 So. 2d 67 (La. 1971). See also Hinckley v. Palm Beach County Bd. of County Comm’rs, 801 So. 2d 193 (Fla. Dist. Ct. App. 4th Dist. 2001) (when trans- portation authority undertook to transport developmentally disabled person, a special relationship and nondelegable duty to protect her from foreseeable harm were created). 102 See, e.g., Bus Service Guidelines for Westchester County Municipalities (hereinafter “Westchester”), at 2, 17, www.westchestergov.com/transportation/images/Bus&20Servic e%20Guidelines.pdf. 103 Most injuries related to bus stops are likely to occur while passengers are boarding or alighting, as opposed to wait- ing for the bus. Of the 17,992 person casualties (suffered by bus passengers or passengers in another vehicle involved in a bus accident) suffered in 1993, 38.3 percent were suffered while boarding/alighting, as opposed to 4.3 percent suffered at owed passengers to providing “a safe means of boarding and exiting” the vehicle.104 New York, for example, im- poses on carriers a duty of care to provide a safe place for passengers to board and exit their vehicles.105 A New York court has explained: The duty owed by the transit defendants to plaintiff, a boarding passenger, has been described as a reasonably safe, direct entrance onto the vehicle, clear of any danger- ous obstruction or defect which would impede that en- trance. Stated differently, imposing liability requires a finding that the placement of the bus dictates that the passenger, in order to board the bus, must negotiate a dangerous or defective path.106 This duty appears to exist whether or not a specific bus stop is designated. In Foley, supra, a New York court upheld the dismissal of plaintiff’s complaint be- cause she had not shown that the location of the bus jeopardized the required safe path. However, the fact that there was no formal bus stop did not diminish the bus company’s duty to provide a safe path to board the bus.107 A Connecticut court has held that the general duty of care owed passengers may require providing assistance to alighting passengers.108 New York holds that the duty to provide a safe path for alighting passengers terminates when the passenger safely reaches the sidewalk.109 Moreover, where a safe path exists, the bus company will not be liable for inju- ries suffered by a passenger opting to take a dangerous path.110 However, a passenger taking his first step off a bus is still owed the duty of a safe place to alight, as the bus stop. ROLLAND D. KING, BUS OCCUPANT SAFETY 5 (TCRP Synthesis 18, 1996). The duty of highest care is owed to passengers when they are boarding and alighting from the bus. 18 McQuillin, supra note 23, § 53.108, n.n. 3–5. See also 2A SPEISER ET AL., supra note 21, § 9:30; Duty and liability of car- rier by motorbus to persons boarding bus, 93 A.L.R. 2d 237. 104 E.g., Reading, 674 A.2d 44. 105 Blye v. Manhattan and Bronx Surface Transit Operating Auth., 124 A.D. 2d 106, 511 N.Y.S.2d 612 (N.Y App. 1st Dep’t 1987); Miller v. Fernan, 537 N.Y.S.2d 123, 124, 534 N.E.2d 40 (1988) (common carrier owes duty to alighting passengers to “stop at a place where the passenger may safely disembark and leave the area”); Foley v. Golub Corp., 252 A.D. 2d 905, 676 N.Y.S.2d 308 (N.Y. App. 3d Dep’t 1998). See also Jam v. Indep. Sch. Dist., 413 N.W.2d 165 (Minn. App. 1987). 106 Gross v. N.Y. City Transit Agency, 256 A.D. 2d 128, 681 N.Y.S.2d 513 (N.Y. App. 1st Dep’t 1998). See also 429 A.2d 879; Mahase v. Manhattan and Bronx Surface Transit Operating Auth., 3 A.D. 3d 410, 771 N.Y.S.2d 99 (N.Y. App. 1st Dep’t 2004). 107 Foley, 252 A.D. 2d 905. 108 Meyers, 429 A.2d at 880. 109 Sigmond v. Liberty Lines Transit, 261 A.D. 2d 385, 689 N.Y.S.2d 239 (N.Y. App. 2d Dep’t 1999). 110 Francias v. City of N.Y., 222 A.D. 2d 215, 634 N.Y.S.2d 483 (N.Y. App. 1st Dep’t 1995). See also Diedrick v. City of New York, 162 A.D. 2d 496, 556 N.Y.S.2d 698 (N.Y. App. 2d Dep’t 1990) (where passenger is injured after safely alighting, and where alternate safe paths were available, no breach of transit agency’s duty of care).

12 opposed to a passenger who has taken several steps away from the bus.111 In Malawer, supra, the bus stopped so that the plaintiff allegedly had to exit onto a slippery subway grating. The court found that it was possible that the plaintiff had not yet safely exited when he fell and thus a question of fact had been raised as to whether the transit agency had breached its duty to afford a safe place to alight, particularly in light of allegations that there were other spots where the driver could have safely stopped the bus. Maryland holds that generally once the plaintiff is discharged safely, the duty to provide a safe path to disembark is met, even if the discharge point is not a regular stop.112 A higher duty of care may be required for children, particularly schoolchildren, than for adults.113 However, Connecticut has held that the mere fact that the pas- senger, even a schoolchild, has to cross the street upon alighting from the bus does not render the path un- safe.114 The duty of care may be established by statute. In Connecticut, for example, after the state supreme court held that a school bus was not a common carrier for the purpose of establishing the standard of care, the legisla- ture applied the common carrier standard of care to school buses by statute.115 Where disabled passengers using a wheelchair ramp or lift are unable to access the bus at the designated bus stop, there may be a duty to allow such passengers to board the bus at the nearest point to the designated stop that will allow safe access.116 111 Malawer v. N.Y. City Transit Agency, 18 A.D. 3d 293, 795 N.Y.S.2d 201 (N.Y. App. 1st Dep’t 2005). 112 WMATA v. Reading, 109 Md. App. 89, 103, 674 A.2d 44, 51 (1996), citing Thomas v. Hampton Express, 208 A.D. 2d 824, 617 N.Y.S.2d 831 (1994), cert. denied, 85 N.Y.2d 803, 624 N.Y.S.2d 373, 648 N.E.2d 793 (1995); Kramer v. Lagnese, 144 A.D. 2d 648, 535 N.Y.S.2d 13 (1988); Mitchell v. Chicago, 221 Ill. App. 3d 1017, 583 N.E.2d 60 (Ill. App. 1991); Heger v. Trus- tees of Ind. Univ., 526 N.E.2d 1041 (Ind. App. 1988); Smith v. Va. Transit Co., 206 Va. 951, 147 S.E.2d 110 (1966); Harris v. De Felice, 379 Pa. 469, 109 A.2d 174 (1954). 113 Jam v. Indep. Sch. Dist. 413 N.W.2d 165 (1987). See also Pratt v. Robinson, 45 A.D. 2d 641, 644, 360 N.Y.S.2d 349, 353 (N.Y. App. 4th Dep’t 1974) (Moule, J., dissenting), citing Shan- non v. Central-Gaither Union Sch. Dist., 133 Cal. App. 124 (1933); Roden v. Conn. Co., 113 Conn. 408 (1931); Gazaway v. Nicholson, 61 Ga. App. 3 (1940), aff'd. 190 Ga. 345; Greeson v. Davis, 62 Ga. App. 667; Jordan v. Wiggins, 66 Ga. App. 534 (1942); Taylor v. Patterson's Adm’r, 272 Ky. 415 (1938)). 114 Meyera, 429 A.2d at 880. 115 Id. 116 See Martin et al. v. Metro. Atlanta Rapid Transit Agency, 225 F. Supp. 1362 (N.D. Ga. 2002), p. 9 of Dec. 24, 2002, order granting preliminary injunction (unpublished order, Civil Ac- tion File No. 1:01-CV-3255-TWT), mandating as part of settle- ment agreement that passengers requiring use of wheelchair lift or ramp wait at designated bus stop, and further requiring that if the passenger cannot board at that stop, the driver board the passenger at the nearest feasible point. C) Persons Waiting at Bus Stop/Shelter.—The Dis- trict of Columbia has held that in addition to owing a duty of care to passengers, the common carrier owes a duty to an individual standing upon property owned or controlled by the carrier. However, merely waiting for a bus on property neither owned or controlled by the car- rier, absent some action by the carrier that causes in- jury, does not give rise to a duty of care.117 D) Persons Walking Away from Bus Stop/Shelter.— Generally the carrier no longer has a duty to a person who has had the opportunity to safely alight from the bus via a usual and proper path.118 For example, Mary- land has held that ordinarily a person’s status as a pas- senger ceases when the person exits the bus, even though the person crosses the street with the intent to board another bus.119 Illinois has made the distinction that a person who transfers from one conveyance to another retains the status of passenger, but that during the time that the passenger is between conveyances, the carrier owes only a duty to exercise ordinary care, rather than a higher degree of care.120 Both Delaware and West Virginia have held that the common carrier has not breached its duty to passengers who had safely disembarked and were injured while crossing the street to transfer to connecting bus lines.121 E) Persons Approaching Bus Stop/Shelter.—The primary question for the purpose of transit agency li- ability for persons approaching a bus stop or shelter is at what point the approaching person attains the pro- tected status of passenger. Thus, findings of liability will depend somewhat on how close the injured party is to the bus stop and on whose property the injury took place. A Texas court has held that where a woman fell next to a bus stop she planned to use, with no bus approach- ing or waiting, there was not sufficient control by the carrier to establish the express or implied contract for carriage.122 More recently, California has held that a person crossing the street to access a bus stop is as much a user of the bus stop as someone waiting at the bus stop and accordingly that the transit agency owed a duty of care to her.123 Rhode Island has held that a would-be passenger who enters upon the premises of the transit agency and then enters an area subject to the control of the transit agency becomes a passenger 117 McKethean v. WMATA, 588 A.2d 708 (1988). 118 2A SPEISER ET AL., supra note 21, § 9:30, n.8. 119 Reading, 674 A.2d 44. 120 Mitchell v. Chicago, 221 Ill. App. 3d 1017, 1019–1021, 583 N.E.2d 60, 62-63 (Ill. App. 1st Dist. 1991). 121 Cooke v. Elk Coach Line, Inc., 37 Del. 120, 180 A. 782 (Del. 1935); Pritchard v. City Lines of West Virginia, 136 W. Va. 278, 66 S.E.2d 276 (W.Va. 1951). 122 2A SPEISER ET AL., supra note 21, § 9:29, n.85, citing City of Houston v. Matthews, 605 S.W.2d 628 (Tex. Civ. App. Hous- ton 1st Dist. 1980), writ refused n.r.e. (Oct. 22, 1980). 123 Bonnano v. Central Costa Transit Auth., 30 Cal. 4th 139, 151, 65 P.3d 807, 814 (2003).

13 owed the highest degree of care.124 Other jurisdictions consider as well the passenger’s immediate intention to become a passenger. 125 Washington views the duty owed by a transit agency to a would-be passenger crossing the highway from a park-and-ride lot to a bus stop in terms of the duty owed to a customer-invitee to keep premises in a rea- sonably safe condition and to warn customers-invitees of dangerous conditions. The warning requirement is for those dangerous conditions that are known or should have been known to the entity and not known or reasonably discoverable by the customer-invitee.126 Washington, however, has held that a transit agency has no duty to warn a passenger of an obviously dan- gerous intersection over which the transit agency had no control.127 3. Harms to Protect Against There are basically two categories of harm that may befall passengers or pedestrians due to a breach of duty related to bus stops: accidental injury and criminal as- sault (including theft): Accidental Injury.—This may be the most common harm regarding which the common carrier and/or pub- lic entity has a duty of care, as discussed supra. Gener- ally the transit agency owes the highest duty of care regarding this harm to passengers and, depending on context, to boarding or alighting passengers. Causes of injury include slip and fall, being struck by the bus or another vehicle, and electrical shock due to faulty elec- trical connections. Assault/Theft.—Transit agencies have generally been held to owe some duty to passengers to protect them from assault by other passengers.128 Statutory and common law special relationships between the common carrier and its passengers may establish that duty of care.129 For example, New Jersey imposes liability on common carriers for failure to provide adequate secu- rity to the extent that proprietary functions are in- volved,130 while New York holds that a transit agency has no duty to protect persons on its premises from as- 124 Kelly v. R.I. Pub. Transit Auth., 740 A.2d 1243 (R.I. 1999). 125 Id. at 1250, citing Galehouse v. Minneapolis, St. P. & S.S. M. Ry. Co., 135 N.W. 189 (N.D. 1912); Johns v. Charlotte, C. & A. R. Co., 17 S.E. 698 (S.C. 1893). 126 Kuehn v. Snohomish County Public Trans. Benefit Area Corp, 109 Wash. App. 1046 (2001). 127 Id. 128 Thomas, supra note 5, at 9, citing Lopez v. S. Cal. Rapid Transit Dist., 40 Cal. 3d 780, 786, 710 P.2d 907, 910 (Cal. 1985); McCoy v. Chicago Transit Agency, 69 Ill. 2d 280, 283– 284, 371 N.E.2d 625, 627–28 (Ill. 1977); Rodriguez v. New Or- leans Pub. Serv., 400 So. 2d 884 (La. 1981); Mangini v. Se. Pa. Transp. Auth., 235 Pa. Super. 478, 344 A.2d 621 (1975). 129 Lopez, 710 P.2d 907. 130 Lieberman v. Port Auth., 132 N.J. 76, 83–85, 622 A.2d 1295, 1299–1300 (1993). sault by third parties,131 except in a narrow set of circumstances132 of uncertain applicability to bus stops. The rule that the common carrier is not the insurer of the passenger’s safety also comes into play in this con- text.133 Generally a public entity will not be liable for failing to provide police protection, a governmental function, unless the injured party can show: (1) that the agency assumed an affirmative duty to pro- tect him or her through promises or actions; (2) knowl- edge by the agency that inaction could lead to harm to plaintiff; (3) direct contact between the agency's represen- tative and the plaintiff; and (4) reliance by plaintiff on the agency's affirmative undertaking to provide protection to him or her.134 Where, however, the harm comes about because of a failure to exercise the requisite care in carrying out a proprietary function, the public entity may be liable for injury caused by foreseeable harm. The harm must, however, be foreseeable. Thus, the District Court for the District of Columbia agreed that a plaintiff could challenge the adequacy of lighting, exit gate placement, and existence of hiding places at a WMATA parking place, but held that WMATA had no duty to protect its visitors against the actions of third persons unless the agency knew or had reason to know that the attacks were occurring or about to occur.135 The New Jersey Supreme Court has found provision of lighting to be a proprietary function,136 while at least some New York courts have declined to make that find- ing.137 Where a proprietary standard is imposed, a land- owner must exercise “reasonable care under the cir- cumstances to maintain the premises in a reasonably safe condition,”138 including taking “minimal security precautions against reasonably foreseeable criminal acts by third parties.”139 Past criminal activity will at a 131 Weiner v. Metro. Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124 (1982). 132 Lieberman, 622 A.2d at 1301–02 (N.J. 1993) (viewing crime from vantage point offering both safety and means to summon help without danger and not doing so is within nar- row range of circumstances that could be found to be action- able), citing Crosland v. N.Y. City Transit Auth., 68 N.Y.2d 165, 498 N.E.2d 143, 145 (1986). 133 See Se. Stages, Inc. v. Stringer, 263 Ga. 641, 437 S.E.2d 315, 317–18 (Ga. 1993). 134 In re World Trade Ctr. Bombing Litig. 3 Misc. 3d 440, 466, 776 N.Y.S.2d 713, 733 (2004), citing Cuffy v. City of N.Y., 69 N.Y.2d 255 (1987). 135 Gillot v. Wash. Metro. Area Transit Auth., 507 F. Supp. 454 (D.C. 1981). 136 Lieberman, 622 A.2d at 1304–05. 137 See discussion of Rivera v. N.Y. Transit Agency, 184 A.D. 2d 417, 585 N.Y.S.2d 367, supra. § 1.C.2. 138 World Trade Ctr. Bombing Litig,, 776 N.Y.S.2d at 734 cit- ing Kush v. City of Buffalo, 59 N.Y.2d 26 (1983); Basso v. Miller, 40 N.Y.2d 233 (1976). 139 Id., citing Nallan v Helmsley-Spear, Inc., 50 N.Y.2d at 519–520. See also Jacqueline S. v. City of N.Y., 81 N.Y.2d 288, 295, 614 N.E.2d 723, 726 (1993); Restatement [Second] of Torts

14 minimum raise a question of fact as to whether future criminal activity is foreseeable, and the past activity need not be the precise type of activity complained of at present.140 Georgia has held that once something occurs to put a common carrier on notice that intentional mis- conduct by third persons is likely to occur, the carrier is required to take measures to protect its passengers from such conduct.141 An Illinois court held the Chicago Transit Authority liable for an assault that occurred on a rapid transit train where physical conditions condu- cive to passenger isolation and past patterns of criminal activity on the trains made it reasonably foreseeable that such attacks would occur.142 A Third Circuit court found the Southeastern Pennsylvania Transportation Authority liable for an assault that occurred on a sub- way platform, holding that insufficient lighting and inattention by the transit agency employee on the scene supported the finding of negligence.143 Conversely, there is no liability where the criminal activity was “sudden, unexpected, unanticipated, and there was no showing that the carrier either knew, or should have known, about it.”144 Furthermore, there may be substantial dif- ferences between the duty owed by a transit agency on a conveyance or in a facility owned by the transit agency and the duty owed at a bus stop/shelter, unless the bus stop/shelter is owned, controlled, or maintained by the transit agency. 4. Summary of Important Principles Responsibility for conditions at a bus stop: • Usually falls to municipality. • May be with transit agency where these types of ac- tions cause injury: • Stopping bus in place that has no clear path to alight, where such clear path alternative exists (e.g., stopping before an icy patch of sidewalk when clear sidewalk is safely available nearby). § 344 concerning a landlord’s duty to reasonably discover the harmful actions of third parties and either warn against or take steps to prevent such action. 140 World Trade Ctr. Bombing Litig., 776 N.Y.S.2d at 734. 141 Se. Stages v. Stringer, 263 Ga. 641, 437 S.E.2d 315 (1993). 142 2A SPEISER ET AL., supra note 21, § 9:19, at 471, citing Gordon v. Chicago Transit Agency, 128 Ill. App. 3d 493, 470 N.E.2d 1163 (Ill. App. 1st Dist. 1984). 143 2A SPEISER ET AL., supra note 21, § 9:20, n.54, citing Kenny v. Se. Pa. Transp. Auth., 581 F.2d 351 (3d Cir. 1978). 144 2A SPEISER ET AL., supra note 21, § 9:20, n.56, citing, in- ter alia, Letsos v. Chicago Transit Agency, 47 Ill. 2d 437, 265 N.E.2d 650 (1970); Miller v. Chicago Transit Agency, 78 Ill. App. 2d 375, 223 N.E.2d 323 (1st Dist. 1966); Leake v. Queen City Coach Co., 270 N.C. 669, 155 S.E.2d 161 (1967); Gillot v. Wash. Metro. Area Transit Agency, 507 F. Supp. 454 (D.C. 1981). See also Carter v. Atlantic Coast Line R. Co., 109 S.C. 119, 95 S.E. 357 (1918) (lack of lighting held not to be proxi- mate cause of attack on employee beaten and robbed on rail- road’s premises). • Stopping bus in manner contrary to transit authority guidance. • Operating buses in a way that creates a dangerous condition (usually a slip and fall hazard) at the bus stop. Transit agency’s duty to afford safe place to board/alight: • Generally met when passenger safely reaches side- walk or equivalent area, whether or not safe spot is designated bus stop. • Usually does not apply to passenger who has safely alighted and crossed the street to transfer buses. • May be required by some jurisdictions to apply to transferring passengers throughout the transfer proc- ess. Duty to prevent criminal assault: • Depends in part on ownership and control of prem- ises. • May be affected by actions of transit agency person- nel. Procedural protection: • Transit agencies may be attractive defendants. • Appropriate indemnification and insurance clauses145 advised for franchise and maintenance agreements. B. Placement of Bus Stop/Shelter Placement is often a significant question in bus stop tort cases. Grounds for alleging placement is unsafe include traffic conditions at the designated stop, weather-related problems at the alighting point, and risk of assault due to a crime-prone location. 1. Description/Extent of Duty Jurisdictions differ as to whether the placement of a bus stop/shelter is a governmental/discretionary deci- sion, possibly immune from tort liability. The District of Columbia, for example, has held that a decision whether to relocate a particular bus stop involves plan- ning, a governmental function, and is therefore immune from liability under the WMATA Compact.146 A Penn- sylvania court has held that since the city of Philadel- 145 See, e.g., § 16, The Wave Transit RFP, Appendix A infra this report; St. Paul, Minnesota Franchise Agreement, Appen- dix B infra this report. 146 McKethean v. WMATA, 588 A.2d 708 (D.C. App. 1988). The court also held that the District of Columbia was also im- mune from liability as its decision whether to relocate the bus stop was a discretionary one. See also Pratt v. Robinson, 45 A.D. 2d 641, 360 N.Y.S.2d 349 (1974) (existence of other safe locations does not in and of itself support finding of breach of duty: general rule is that determination of school bus stop is governmental decision that courts will not second guess; even hazardous location may not be basis for liability where alterna- tive locations are unsatisfactory).

15 phia had no duty to erect traffic controls, it had no duty to place a bus stop at a location that contained traffic controls. In addition, the court held a claim of negligent design of the bus stop to be barred by governmental immunity under the Pennsylvania statute.147 California, while continuing to recognize the viability of the discretionary decision exception to statutory im- munity, has held that a bus stop location may consti- tute a dangerous condition of public property. The dan- ger may arise from the relationship of the bus stop to its surroundings, e.g., an unsafe intersection.148 In Bo- nanno, supra, the court found that the bus stop place- ment created a dangerous condition under state law because: …the stop could, at that location, only be reached from the south side of [the street] by one of two approaches (the crosswalk and the narrow north shoulder of [the street]), both of which were unnecessarily un- safe.…[P]ublic entities are subject to potential liabil- ity…when their facilities are located in physical situa- tions that unnecessarily increase the danger to those who, exercising due care themselves, use the facilities in a reasonably foreseeable manner.149 The court rejected the arguments of public entities that finding liability under the facts of Bonanno would open public agencies to liability for all manner of design decisions. The court emphasized that in order to estab- lish liability, the dangerousness must not only arise from the property’s location or physical location, but must be substantial. In addition, the property must be owned or controlled by the public entity, the dangerous condition must proximately cause the injury, the condi- tion must create a reasonably foreseeable risk of the injury that occurred, and the public entity must either negligently create the condition or must have had suffi- cient notice to correct the condition.150 However, such liability may still be defeated by the discretionary deci- sion exception to statutory liability,151 and where locat- ing a bus stop in a high-crime neighborhood or at a dangerous intersection is the only way to provide ser- vice in a particular neighborhood, the transit agency would not be liable for maintaining a dangerous condi- tion.152 Although the Bonanno decision created a stir in California, as of February 2007 it had not been followed elsewhere. A New Mexico court has held that the decision to lo- cate a bus stop at a particular place is a matter of main- tenance not subject to statutory immunity unless there 147 Garrett v. Moyston, 127 Pa. Comm. 488, 562 A.2d 386 (1989). 148 Bonanno v. Central Costa Trans. Auth., 30 Cal. 4th 139, 150, 65 P.3d 807, 813 (2003). 149 Id. at 813, n.4. 150 Id. at 816. 151 Id. 152 Id. at 817. are specific facts establishing that the location was part of the road design.153 Where a private property owner such as a shopping center forces the removal of a bus stop from its prop- erty, the private owner may be liable for injuries suf- fered by pedestrians traveling from the relocated bus stop and the shopping center.154 Where a transit system has a significant number of minority patrons, a decision to refuse to allow a bus stop at a mall may be subject to allegations of violations of civil rights law.155 These points may be of interest in negotiating transit access to enclosed private property. An otherwise safe bus stop may be rendered unsafe by the bus driver’s actions, although, as is the case with many of these actions, court decisions are very fact- dependent.156 In Gross, supra, the bus driver, contrary to the rule requiring a bus to stop within 12 in. of the curb, stopped the bus one (empty) car lane away from the curb, leaving the debarking passenger to navigate the traffic lane near Times Square. The court held it was a jury question whether this stop created a foresee- able risk of injury, but noted that the driver’s failure to follow departmental traffic rules could be taken as evi- dence of negligence. The court specifically rejected the transit agency’s contention that, as a matter of law, plaintiff’s failure to check for oncoming traffic was an intervening factor that precluded a finding of negli- gence on the part of the transit agency.157 In Malawer, supra, the court held that it was a jury question whether the bus driver’s decision to stop in front of an icy subway grating instead of at a clear por- tion of sidewalk was a breach of the duty to afford a clear path for alighting from the bus.158 2. Duty Owed By In determining which entities may owe a duty of care, it is important to consider ownership and control of the bus stop. In addition, responsibilities may be set by statute or regulation. For example, the Nevada legisla- ture recently transferred the responsibility for placing bus benches and bus shelters from local governments in Clark County to the Regional Transportation Commis- 153 Gallegos v. State, 123 N.M. 362, 940 P.2d 468 (N.M. App. 1997). 154 DENNIS HINEBAUGH, LAUREL LAND, & LISA STAES, CENTER FOR URBAN TRANSPORTATION RESEARCH, 9–10 PUBLIC TRANSIT ACCESS TO PRIVATE PROPERTY (2000). (Shopping cen- ter liable for injuries to disabled passenger injured traveling between relocated bus stop and shopping center; family of sin- gle mother recovered from transit agency, mall, and dump truck company: decedent killed by dump truck while crossing seven-lane highway trying to get to job at mall; bus had been forbidden to stop at mall). 155 Id. at 10. 156 See 2A SPEISER ET AL., supra note 21, § 9:30, n.5. 157 Gross v. N.Y. City Transit Auth., 256 A.D. 2d 128, 681 N.Y.S.2d 513 (N.Y. App. 1998). 158 Malawer v. N.Y. City Transit Auth., 18 A.D. 3d 293, 795 N.Y.S.2d 201 (N. Y. App. 1st Dep’t 2005).

16 sion of Southern Nevada.159 In New Mexico, the Trans- portation Division of the State Department of Educa- tion has a statutory responsibility to establish bus routes, which has been held to include the responsibil- ity for establishing bus stops.160 While in many jurisdictions the municipality owns and/or is responsible for establishing bus stops, in some cases such ownership and/or responsibility lies with the transit agency.161 Where a city approves the placement of a bus stop, it may be liable for injury caused by an accident related to that placement.162 Where a transit agency owns and controls the bus stop, even though the county could veto the location of the bus stop, the tran- sit agency may be liable for injuries suffered due to un- safe conditions on property adjacent to the bus stop.163 Jurisdictions split over whether a public entity has a duty to protect passengers from dangers on adjacent land. California, for example, has held that such a duty exists,164 while Washington says it does not.165 Where a bus stop is located at an unsafe location, in addition to the transit agency being liable for placement of the bus stop, the responsible municipality may also be liable for maintaining an unsafe crosswalk.166 The fact that the 159 Committees—Bus Shelter and Bench Advisory Commit- tee, www.rtcsouthernnevada.com/rtc/bsbac.htm. 160 Gallegos v. State Bd. of Educ., 123 N.M. 362, 940 P.2d 468 (N.M. App. 1997). 161 E.g., in Alexandria, Virginia, the City of Alexandria in- stalled the bus benches and shelters for its DASH service; WMATA installed the bus benches and shelters for Metrobus. The city has now assumed responsibility for the bus benches and shelters for Metrobus. See City of Alexandria Public Transportation and Control Project, available at http://alexandriava.gov/budget/2008/proposed/pdf/cip08prop_tr ansportation.pdf; in Austin, Texas, Capital Metro appears to own bus stops and bus shelters, www.window.state.tx.us/tpr/capmet/chpt7.htm; in Coronado, California, the transit agency is responsible for bus shelters. Minutes of a Regular Meeting of the City Council of the City of Coronado, 1825 Strand Way Coronado, CA, 92118, Tuesday, Apr. 15, 2003, 3:00 p.m., http://service.govdelivery.com/service/docs/CACORON/CACOR ON_1/CACORON_1_20030415_en.htm; the San Mateo County Transit District appears to have responsibility for bus shelters in its service area, www.samtrans.org/pdf/BOD_Agenda_Reports/03_15_06/FIN_1 _Minutes.pdf; the St. Cloud Metropolitan Transit Commission appears to have responsibility for bus shelters in its service area; in Bexar County, Texas (San Antonio), VIA Metropolitan Transit appears to own the bus shelters in its service area. 162 See, e.g., Am. Employers Ins. Co. v. Metro Regional Tran- sit Agency, 12 F.3d 591 (6th Cir. 1993). 163 Bonanno v. Central Contra Costa Transit Auth., 30 Cal. 4th 139, 147, 65 P.3d 807, 811 (2003). 164 Id. at 807. 165 Kuehn v. Snohomish County Pub. Transp. Benefit Area Corp., 109 Wash. App. 1046 (2001). 166 Bonanno, 65 P.3d at 810. Cf. Garrett v. Moyston, 127 Pa. Comm. 488, 562 A.2d 386 (1988) (city not liable for placing unsafe bus stop because of lack of traffic signals where city had no obligation to install traffic signals). actual injury is caused by a third party does not neces- sarily relieve the public entity of responsibility.167 3. Summary of Important Principles Assessing potential liability: • Does the transit agency have responsibility for desig- nating bus stop placement? • Does the jurisdiction deem bus stop placement to be a policy level decision immune from liability? • Does the jurisdiction recognize a duty to address dan- gerous conditions on adjacent property? • If so, is risk of injury substantial? • Placing the bus stop where sufficient sidewalks are lacking may constitute placing the bus stop adjacent to dangerous conditions, particularly for disabled passen- gers. • Regardless of responsibility for designating bus stop placements, injuries caused by driver-created bus stops may give rise to liability. C. Design/Maintenance of Bus Stop/Shelter (Including Signs) Design (principally of bus shelters) and maintenance (of both bus stops and bus shelters) are two significant areas where transit agencies may incur liability. These are also areas where carefully drafted agreements with service providers are important to avoid liability. 1. Description/Extent of Duty The duty as to design includes exercising reasonable care to avoid reasonably foreseeable dangers, and tak- ing reasonable steps to alleviate dangers that become apparent. For example, whether or not it is foreseeable at the outset that bus shelters may be demolished by vehicles leaving the street and ending up on the side- walk, once a number of such incidents occur it is fore- seeable that additional such accidents will occur.168 That the injury is actually caused by the negligent action of the driver who strikes the bus shelter does not relieve the designer of the bus shelter of all responsibility: “the foreseeable result of the risk created by [the designers] was injury to a pedestrian from a vehicle striking the improperly designed shelter.”169 Where the entity responsible for designing/installing a bus shelter does so in a negligent fashion, giving rise to a dangerous condition, that entity need not have no- tice of the condition to be liable for a breach of the duty of reasonable care. Thus, where the franchisee respon- sible for installing and then maintaining a bus shelter may have done so with a drain pipe opening onto a sidewalk instead of into the street, the franchisee did not need actual or constructive notice of the resulting icy condition that caused an alighting passenger to slip 167 Bonanno, 65 P.3d at 814. 168 See Flynn v. Farias, 139 Misc. 2d 699, 528 N.Y.S.2d 486 (1988). 169 Id.

17 and fall in order for its liability to be a triable issue of fact.170 A design defect will not necessarily relieve the party responsible for maintenance of liability, but may do so if the maintenance agreement does not impose exclusive or comprehensive duties on the maintenance provider.171 Ordinarily, a governmental entity has a duty to keep its streets and sidewalks in a reasonably safe condi- tion.172 In addition, there is a general duty of reasonable care to maintain the sidewalk in front of a bus stop,173 as part of the property owner’s “general duty to exercise reasonable care in maintaining [a] public space in a safe condition.”174 A similar duty may attach where the bus stop is on the side of a road.175 The duty to maintain may include the duty to protect against harmful crimi- nal conduct on the public property.176 The duty is predi- cated on control over the sidewalk. Where, for example, the city has entered into an agreement with the transit agency to maintain and control the property, the city owes no duty to an injured plaintiff.177 The condition of a bus stop may be adversely affected by bus operations or other actions of the transit agency, giving rise to liability even where another party is re- sponsible for maintaining the bus stop area.178 For ex- ample, in Matias v. City of New York,179 the plaintiff offered evidence that the action of the transit agency’s buses repeatedly running over a curb may have given rise to the condition that caused the plaintiff to trip. The court ruled that there was a factual issue as to the transit agency’s liability. New York holds that while a transit agency does not have a duty to repair the side- walks, it does have a duty not to impair the safety of 170 Patterson v. N.Y. City Transit Agency, 5 A.D. 3d 454, 773 N.Y.S.2d 417 (N.Y. App. 2d Dep’t 2004). 171 Baher v. Shelter Express, Inc., 298 A.D. 2d 320, 748 N.Y.S.2d 859 (N.Y. App. 2002) (uncorrected opinion) (defective design of bus shelter created icy condition by shelter; party responsible for maintaining shelter not liable for injury to pas- sengers or passersby, unless maintenance agreement imposes exclusive or comprehensive duties upon maintenance provider). 172 LANDAU ET AL., supra note 28, § 8.02[1]. State statutes may affect the scope of that duty. Id. § 8.02[2]. Furthermore, the governmental entity that has the duty cannot delegate it to another entity. Id § 8.02[4]. 173 Simpkins v. United States, 253 F. Supp. 2d 4 (D.C. 2003). 174 Id. at 7. 175 Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2000) (plaintiff exited bus on to shoulder of road, was injured when he tripped on portion of steel signpost protruding from ground). 176 Bonanno v. Central Contra Costa Transit Auth., 30 Cal. 4th 139, 146, 65 P.3d 807, 815 (2003). 177 LANDAU ET AL., supra note 28, § 8.02[1], n.4.1, citing Leo- nardi v. Chicago Transit Agency, 341 Ill. App. 3d 1038, 1043– 1044, 793 N.E.2d 880, 885–886 (Ill. Ct. App. 2003). 178 Dursi v. N.Y. City Transit Agency, 198 A.D. 2d 470, 471, 604 N.Y.S.2d 543 (N.Y. App. 2d Dep’t. 1993). 179 292 A.D. 2d 311, 741 N.Y.S.2d 497 (N.Y. App. 1st Dep’t 2002). the sidewalks.180 Even where the transit agency is not responsible for maintenance, the transit agency may be liable on other grounds.181 2. Duty Owed By The property owner owes a general duty to exercise reasonable care concerning the public space in front of a bus stop.182 Ordinarily the common carrier is not re- sponsible for maintaining or repairing the public space at a bus stop.183 In New York, the responsibility to maintain bus stops, including the sidewalks and curbs, belongs to the City of New York or the owner/lessee of the abutting property.184 The New York City Transit Agency only has a duty of care if it derives a special benefit from the alleged condition or if it causes the condition.185 Thus in New York, where the transit agency’s use of the sidewalk constitutes a special use (“a construction in the sidewalk, not necessary for its proper construction or maintenance as a public side- walk, and which is designed to create a special benefit to the user of the construction”), the transit agency will be responsible for maintenance of the special use area and prior notice of an unsafe condition will not be re- quired. Moreover, the existence of a special use makes the governmental/proprietary distinction irrelevant for purposes of notice.186 Even where a transit agency has a contractual obliga- tion to maintain a transit facility in a safe condition, the property owner may not be able to delegate its duty of reasonable care concerning the sidewalk to the tran- sit agency, at least where the transit agency’s use of the property is limited to picking up and dropping off pas- sengers.187 If the activity that gives rise to a duty is “inherently dangerous,” some jurisdictions hold that the duty of care is nondelegable, even if an independent contractor carries out the activity. The term “inherently danger- ous” extends beyond work that is “intrinsically hazard- ous” depending on the circumstances under which the 180 Petrucci v. New York, 167 A.D. 2d 29, 569 N.Y.S.2d 624 (1991). 181 Hickey v. Manhattan and Bronx Surface Transit Operat- ing Auth., 163 A.D. 2d 262, 558 N.Y.S.2d 543 (N.Y. App. 1st Dep’t. 1990) (city breached its duty to maintain the sidewalk; transit agency breached its duty to provide safe path for alight- ing). 182 Simpkins v. United States, 253 F. Supp. 2d 7 (D.C. 2003). 183 McKethean v. WMATA, 588 A.2d 708 (D.C. App. 1991). 184 Duris v. N.Y. City Transit Auth., 198 A.D. 2d 470, 604 N.Y.S.2d 960 (N.Y. App. 1993). 185 Gall v. City of N.Y., 223 A.D. 2d 622, 636 N.Y.S.2d 837 (N.Y. App. 2d Dep’t 1996). 186 Giaccotto v. N.Y. City Transit Agency, 150 Misc. 2d 164, 566 N.Y.S.2d 450 (N.Y. Sup. Ct. 1990). Note that bus lanes are not a special use by a transit agency. Towbin v. City of N.Y., 309 A.D. 2d 505, 765 N.Y.S.2d 242 (N.Y. App. 1st Dep’t 2003). 187 Simpkins, 253 F. Supp. 2d 4.

18 work is performed. 188 As a point of comparison, in Schlosser, supra, the court held that stocking and clean- ing a construction site was not inherently dangerous work. Whether or not the duty of care is delegable, the property owner may be indemnified by the transit agency for the liability by contract.189 In addition, the responsibility to maintain the area near a bus shelter may be delegated by contract. For example, in Lerer v. City of New York,190 New York City, the nominally re- sponsible party, had a franchise agreement with Out- door Systems to operate its bus shelters. Outdoor Sys- tems had a contract with Shelter Express Corp. to maintain the bus shelters. It was deemed a triable issue of fact as to whether Express had a contractual duty to maintain and repair the sidewalk by the bus shelter and whether Express had a duty to defend the action brought against Outdoor Systems. Notably, this issue arose because the court found that the contract clause setting forth the scope of Express’s duty to maintain the sidewalk was ambiguous. A Connecticut court held in Rodriguez v. City of Hart- ford that even where the common carrier is a manage- ment company that is specifically not contractually re- sponsible for maintenance, the common carrier duty to provide a safe place to alight creates a question of fact about that carrier’s liability.191 In Rodriguez, the plain- tiff was injured when he tripped over a water valve at a bus stop, and was seeking to recover from, among oth- ers, H.N.S. Management Company, Inc. H.N.S. moved to dismiss, arguing that it had no control over the valve, was contractually not responsible for maintenance at the bus stop, and therefore as a matter of law had no duty to the plaintiff. The court rejected H.N.S.’s argu- ment that as a matter of law it had no duty of care to Rodriguez, since as the provider of professional services it was not foreseeable to it that the plaintiff would trip on the valve over which H.N.S. had no control. Rather, because of the common carrier duty, there was a jury question as to the foreseeability of the occurrence and hence potential liability. State statutes may specify responsibility for design and maintenance. For example, in Connecticut, a high- way defect provision makes the state liable for defects within the right-of-way.192 3. Duty Owed to Whom The general duty of reasonable care concerning the sidewalk in front of a bus stop is owed to any pedes- 188 See W. M. Schlosser Co. v. Md. Drywall Co., 673 A.2d 647 (D.C. 1996). 189 Simpkins, 253 F. Supp. 2d at 8. See § II.I., Indemnifica- tion and Insurance infra. 190 301 A.D. 2d 577, 756 N.Y.S.2d 217 (N.Y. App. 2d Dep’t 2003). 191 2004 Conn. Super. LEXIS 3808 (unpublished opinion), citing Parlato v. Conn. Transit, 181 Conn. 6667, 434 A.2d 322, 323 (1980). 192 Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2000). trian, including but not limited to passengers approach- ing or departing from the bus stop.193 In addition, there may be a duty owed to passersby. The company respon- sible for defective electrical wiring of a bus shelter in Miami was held liable for the electrocution of a young boy who sought shelter from a rainstorm. The fact that he was not a passenger does not appear to have been an issue in the case.194 4. Summary of Important Principles Responsibility for bus shelter design: • Responsible entity must exercise reasonable care to avoid reasonably foreseeable dangers. • Dangers not apparent at the outset may become so. • Reasonable steps should be taken to alleviate such dangers. • Negligent design: • Actual notice of defect not required for liability to accrue. • Transit agency may be liable for approving negli- gent design. Bus stop and bus shelter maintenance • Generally municipal responsibility, unless contracted out. • Contractor must meet general negligence stan- dards. • Adjacent property owners may be responsible for maintaining some of the area around the bus stop. • Transit agency may have maintenance responsibility. • State or local law. • Agreement with otherwise legally responsible en- tity. • Limitations on public entity’s ability to delegate responsibility may exist. • Ability of public entity to receive or provide indemnification varies by jurisdiction. • Even absent direct maintenance responsibility, liabil- ity may accrue based on actions of transit agency that adversely affect conditions at the bus stop. Liability attached to structures may give rise to li- ability for injury to passersby resulting from defective conditions at the bus shelter. D. Indemnification and Insurance195 The issue of indemnification arises in the context of public employee liability and the context of various agreements between transit agencies and municipali- 193 Simpkins, 253 F. Supp. 2d at 7–8. 194 Cabrera v. Eller Media Co., June 24, 2005: Natalie White, $65 Million for Sixth-Grader Electrocuted at Bus Stop, Jury Rejects Lightning Theory, www.lawyersweeklyusa.com/usa/8topten2005.cfm. 195 A detailed discussion of the issues potentially involved in drafting indemnification provisions (e.g., collateral source rule, see Mead v. Amtrak, 676 F. Supp. 92 (D. Md. 1987)) is beyond the scope of this report.